Delhi District Court
Sc No: 512/22 State vs . Ashish Pal & Others on 17 April, 2023
SC No: 512/22 State Vs. Ashish Pal & Others
IN THE COURT OF SH. GAUTAM MANAN
ADDITIONAL SESSIONS JUDGE- 02
SOUTH-WEST, DWARKA COURTS, DELHI
In the matter of:-
S. C. No. 512/2022
CNR No. DLSW01-006866-2022
FIR No. 320/2022
Police Station Dabri
Under Section U/s 307/34 IPC &
U/s 25/27 Arms Act
State
Versus
1. Ashish Pal
S/o Sh. Ram Sanjiwan
R/o D-458, Gali No. 60,
Mahavir Enclave-III, Delhi.
2. Akash Kumar @ Chawal
S/o Sh. Mahavir
R/o RZ-80, Q- Extension,
Uttam Vihar, Uttam Nagar, Delhi.
3. Manish @ Monti
S/o Sh. Om Prakash
R/o C-183, DDA Flats,
Bindapur, Delhi.
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4. Suraj Giri
S/o Sh. Rameshwar Giri,
R/o B-42, Madhu Vihar,
New Delhi.
5. Ajay Shah
S/o Sh. Bachu Shah
R/o Gali No. 6, Nikhil Vihar,
Village Kair, Najafgarh,
Delhi. ... Accused Persons
Date of institution 08.07.2022
Judgment reserved on 17.04.2023
Judgment Pronounced on 17.04.2023
Decision Acquitted
JUDGMENT
1. Accused persons are facing trial in the present case for attempting to murder complainant Deepak by stabbing him with knife. Additionally accused Akash Kumar is facing trial for possessing a knife in contravention of notification issued by Delhi Government.
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Brief Facts
2. FIR in question was registered on the complaint of complainant Deepak (PW1). English translation of his statement reads as under:-
"I am living with my family on the abovesaid address and used to run a shop of sandal and shoes in the weekly market. On 30.03.2022, at about 11.30 pm, I was coming back to my home after closing the shop from the market and when I reached in a street near my house, 5-6 boys parked a scooty and a bike in the street and were speaking loudly and were abusing each other. I told them not to abuse and to go away. Thereafter, they started abusing me and started beating me. One of the boys asked his friend to give him a knife and then he attacked me. I sustained injuries on the elbow of my right hand, on the left side of the chest and on the right side also near the chest. He was inciting by his friends and his other companions were calling his name as Suraj Giri. I managed to run away from there and after reaching him, I called at 100. PCR reached and got me admitted in DDU Hospital Hari Nagar. After that, you came to the hospital, inquired about the incident and wrote my statement. Legal action be taken against the person who attacked me with knife. I can identify Suraj Giri and all his associates."
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3. During investigations of the case, MLC of injured was collected, statement of witnesses were recorded. Site plan of place of occurrence was prepared. On the basis of investigations, accused persons Ashish Pal, Akash Kumar @ Chawal, Manish @ Monti, Suraj Giri and Ajay Shah were charge-sheeted.
Charge
4. Vide order dated 08.07.2022 charges under Section 307/34 IPC was framed against all accused persons and accused Akash was charged for offence punishable under section 25 Arms Act. Accused persons pleaded not guilty and claimed trial.
Prosecution Evidence
5. To prove its case, prosecution examined three witnesses.
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6. PW1 (complainant) Deepak deposed that he used to put his shoe stall in weekly markets at Dwarka. On the date of incident, at about 11.30 pm, after wrapping his work at weekly market, he was going towards his house with his rehdi. After reaching home, he unloaded stuff from rehdi and parked his rehdi. There was dark in the street. About 5-6 boys came there. They beat him up and went away. Thereafter, he went to hospital and called at 100 from his friend's mobile. IO SI Rakesh came and recorded his statement Ex.PW1/A. He was called in PS where his signatures were obtained on some blank papers and he came back. Complainant deposed that he cannot identify those persons who gave beatings to him as it was night time, it was dark and place was not well lit.
7. Since complainant (PW1) failed to identify accused persons as assaulter, he was declared a hostile witness. PW1 Judgment 5 of 16 SC No: 512/22 State Vs. Ashish Pal & Others was cross examined by ld. Additional PP at length but no incriminating material could be elucidated from his testimony. During his cross examination by ld. Additional PP for State, he deposed that IO prepared site plan Ex.PW1/B of place of occurrence at his instance and also deposed that accused persons Akash Kumar @ Chawal, Ashish Pal, Suraj Girish @ Ashu and Manish @ Monti were arrested vide arrest memos Ex.PW1/C to F. He also deposed that Doctor seized his shirt Ex. P-1 vide memo Ex.PW1/F at the time of his medical examination. He also deposed that he identified accused Ajay during TIP proceedings Ex.PW1/H but clarified that he identified him only on his gut feeling and he was not sure whether accused persons were present at the time of incident. He categorically deposed that accused persons were not armed with knife nor accused persons beat or caused any injury him.
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8. PW2 SI Rakesh Kumar Investigating Officer (IO) of the case recorded statement Ex.PW1/A of complainant and got registered FIR (Ex. P-1). He seized blood stained shirt of complainant vide memo Ex.PW1/G and prepared site plan Ex.PW1/B at the instance of complainant. IO obtained CCTV footage in which accused are seen riding on a motorcycle and a scooty. IO proved arrest, personal search and disclosure statements of accused persons vide Ex.PW1/C to I. He seized scooty bearing registration no. DL-4S-CZ-2115 at the instance of accused Manish @ Monty vide memo Ex.PW2/J and prepared site plan of recovery of scooty Ex.PW2/K.
9. Investigating Officer deposed that accused Akash got recovered knife which was used in the commission of offence from his house and he seized the said knife vide memo Ex.PW2/L and prepared sketch of knife Ex.PW2/M and prepared site plan of place of recovery of knife Ex.PW2/M-1.
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He recorded supplementary disclosure statement of accused Suraj Giri @ Ashu Ex.PW2/M-2 & M-3. PW2 proved arrest, personal search and disclosure statement of accused Ajay Shah as Ex. P-7, Ex.PW2/O & P. Motorcycle on which accused persons were riding at the time of incident was seized from him vide seizure memo Ex.PW2/N. TIP Ex.PW1/H of accused Ajay Shah was conducted wherein he was identified by injured. IO obtained subsequent opinion Ex.PW2/Q-1 in respect of the injuries of complainant. He proved pen drive Ex.P-2 wherein accused persons are seeing riding motorcycle and scooty near place of incident.
10. PW3 HC Krishan Kumar deposed that on 01.04.2022, he joined investigations of this case alongwith IO SI Rakesh Kumar. He also deposed that recovery of knife was affected from accused Akash from his house.
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11. In their statement recorded under Section 294 CrPC, accused persons admitted registration of FIR Ex. P-1, certificate u/s 65B Indian Evidence Act given by HC Harish Chander in support of computerized record of FIR as Ex. P-2, GD Nos. 193A and 150A dated 30.03.2022 as Ex. P-3 & P-4 respectively, MLC of complainant Deepak bearing no. 81567 as Ex. P-5, MLC X-Ray form of complainant as Ex. P-6, arrest memos of accused Akash, Ashish, Suraj and Manish as Ex.PW1/C to F and of accused Ajay Shah as Ex. P-7 and TIP Proceedings of accused Ajay Ex.PW1/H and of accused H @ D as Ex .P-8.
Statement of Accused Persons under Section 313 Cr.P.C
12. Entire incriminating evidence was put to accused persons in their statement recorded under Section 313 CrPC. Accused persons stated that all the allegations are false, they are innocent and they are falsely implicated in this case.
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Arguments
13. Sh. Pramod Kumar, Ld. Addl. PP for State submitted that though complainant (PW1) failed to identify the accused persons but it stands proved on record that accused persons were arrested at the instance of complainant. It is argued that during TIP proceedings accused Ajay was identified by complainant and recovery of knife which was used in commission of offence at the instance accused Akash stands also proved beyond shadow of doubt and hence, case of prosecution stands proved beyond reasonable doubt, therefore, accused persons are liable to be convicted.
14. On the other hand, Ld. defence counsel submitted that complainant (PW1) has failed to identify the accused persons as assaulters. It is further submitted that recovery of weapon of offence at instance of accused is highly doubtful as no independent witness joined the recovery proceedings. It is Judgment 10 of 16 SC No: 512/22 State Vs. Ashish Pal & Others argued that identity of the accused persons stands not proved and thus, accused is entitled to be acquitted.
15. I have heard ld Additional PP for State and ld. defense counsel at length. I have perused the material on record. Analysis and Discussion
16. Complainant (PW1) who is injured/eye witness d failed to identify accused persons as his assaulter. Complainant deposed that on date of incident at about 11.30 pm, while he was on the way of his home and reached in a street near his house, there was darkness in the street. At that time, about 5-6 boys came there and after beating him, they went away. Due to darkness, he was unable to identify assailants. He went to hospital and called at 100 from his friend's mobile. He categorically deposed that accused persons did not cause any injury to him.
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Recovery of Weapon of Offense
17. PW2 and PW3 are police officials and deposed about the investigations carried out by them in the present case. Both have proved deposed in respect of recovery of knife from the house of accused Akash. Let us examine what PW2 SI Rakesh deposed in his cross-examination:
It is correct that in the CCTV footage, incident is not visible. Accused persons are seen riding vehicles at the distance of 20-30 meters from the spot. Knife was recovered from the house Akash @ Chawal. He was residing at a property constructed upto 4 floor and he was residing on the third floor. At present I do not remember the complete address but he was residing somewhere in Bhagwati Garden. I along with Ct. Krishan reached at house of accused Akash at about 12 -12:30 noon. Seizure memo of the knife was also signed by Ct. Krishan. I recorded statement of Ct.
Krishan U/s 161 Cr.P.C. in respect of seizure of knife. After seeing the Police file witness submits that statement of Ct Krishan in respect of seizure of knife is not on record. In the house of Akash two ladies and one male was present. Male member was father and one of the female was his mother. To verify the address of accused, I obtained copy of his Aadhar card. At this stage, witness submits that Aadhar card of accused is on Police file but address mentioned there is of some other place. No public person was joined in the investigation in respect of the recovery. ..
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18. PW3 Ct Krishan in respect of recovery of knife in his cross-examination as under:
When we went to house of accused Akash, there were two ladies and a male were present. I do not know the name of male person. I do not remember the age of male person. I do not know what was relationship between accused Akash and male person present in the house. I went on third floor of the house. I do not know who were residing on the first and second floor of the property. No body was asked to join investigation of this case. Knife was recovered from the almirah which was lying on the top of almirah. IO prepared site plan of the place of recovery and also prepared the sketch of the knife. Both documents are containing my signatures....
19. Both prosecution witnesses (PW2 & 3) in respect of recovery of weapon of offence deposed that they went on 4th Floor of the building in the house of accused Akash @ Chawal to recover knife but despite availability no public person was asked to join investigation in respect of recovery of knife. IO failed to give address of the house of accused Akash where he allegedly went to recover knife. He deposed that to verify the address of accused Akash, he obtained copy Judgment 13 of 16 SC No: 512/22 State Vs. Ashish Pal & Others of his Aadhar card but after going through police file, he admitted that Aadhar card of accused was having address of some other place.
20. In case reported as Sadhu Singh v/s State of Punjab, 1997(3) Crimes 55, Hon'ble Punjab & Haryana High Court observed as under:
"In a criminal trial, it is for the prosecution to establish its case beyond all reasonable doubts. It is for the prosecution to travel the entire distance from may have to must have. If the prosecution appears to be improbable or lacks credibility the benefit of doubt necessarily has to go to the accused.
In the present case, the State examined two witnesses namely, Harbans Singh ASI who appeared as PW1 and Kartar Singh PW2. Both the witnesses supported the prosecution version in terms of the recovery of opium from the person of the petitioner, but there was no public witness who had joined. It is not necessary in such recoveries that public witnesses must be joined, but attempt must be made to join the public witnesses. There can be cases when public witnesses are reluctant to join or are not available. All the same, the prosecution must show a genuine attempt having been made to join a public witness or that they were not available. A stereotype statement of non availability will not be sufficient particularly when at the relevant time, it was not Judgment 14 of 16 SC No: 512/22 State Vs. Ashish Pal & Others difficult to procure the service of public witness. This reflects adversely on the prosecution version."
21. As stated above, prosecution must show a genuine attempt having been made to join a public witness or that they were not available and a stereotype statement of non availability will not be sufficient particularly when at the relevant time, it was not difficult to procure the service of public witness. In present case also, there is lack of genuine attempt by the Investigating Officer to join any independent witness despite the fact that house of accused Akash was fourth floor of the building and any of the resident of the building could have easily joined.
22. From the evidence led by prosecution following facts emerge:
i) Complainant has failed to identify accused persons as assaulters.
ii) Recovery of weapon of offence from accused Akash stands not proved beyond shadow of doubt.
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Conclusion
23. Accordingly, accused Ashish Pal, Akash Kumar @ Chawal, Manish @ Monti, Suraj Giri and Ajay Shah are acquitted. Their personal bonds are canceled and surety are discharged. Documents, if any, be returned to the surety. In terms of Section 437(A) CrPC accused persons are directed to furnish personal and surety bonds in the sum of Rs.10,000/-
each for period of six months.
File be consigned to record room.
Announced in open Court on 17th day of April 2023.
GAUTAM Digitally signed by GAUTAM MANAN MANAN Date: 2023.04.17 14:19:10 +0530 Gautam Manan Additional Sessions Judge-02 South-West, Dwarka, New Delhi Judgment 16 of 16